Karnataka High Court
State By Dy S P Kolar vs Munavar Pasha S/O Ameerjan on 28 August, 2012
Bench: Dilip B.Bhosale, S.N.Satyanarayana
-1-
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 28TH DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.JUSTICE DILIP B BHOSALE
AND
THE HON'BLE MR.JUSTICE S.N.SATYANARAYANA
CRL.A .NO.1535/2006 (A)
C/W CRL.RP 665/2006
CRL.A .NO.1535/2006
BETWEEN:
State by Dy. S.P.Kolar,
Sub-Division, Kolar.
...Appellant
(By Sri P.M.Nawaz, Addl. SPP)
AND :
1. Munavar Pasha,
S/o Ameerjan,
Aged 30 years,
Attendar,
Government Hospital,
Kyalanur,
R/o Vokkaleri Village,
Kolar Taluk.
2. Basavaraja @ Basava,
S/o Gopalagowda,
21 years,
R/o Yalavara Village,
Kolar Taluk.
-2-
3. Rajesh,
S/o Hemanthkumar,
25 years,
R/o Kyalanur Village,
4. Ravi
S/o Shivanna,
25 years,
R/o Kyalanur Village,
5. E. Subramani,
S/o Erappa,
26 years,
R/o Kyalanur Village,
6. K.V.Manjunath,
S/o Venkatappa,
35 years,
R/o Kyalanur Village,
Kolar Tq., and District.
...Respondents
(By Sri C.V.Nagesh, Sr. Counsel and
Sri Raghavendra.K., Adv., for R1 to R6)
This Crl.A is filed u/s 378(1) and (3) Cr.P.C praying to
grant leave to file an appeal against the Judgment dt.28.2.06
passed by the II Addl. S.J., Kolar, in S.C.No.156/00-
acquitting the respondents/accused for the offences P/U/SS
120B, 302 and 201 of IPC Sec.3(2)(v) of SC/ST (POA) Act
1989 R/W Sec.34 of IPC.
CRL.RP 665/2006
BETWEEN :
Sri . Srinivasa,
S/o K.V.Nagappa,
Aged about 33 years,
Occ :Teacher,
Resident of Kyalanoor,
-3-
Kolar Taluk and District.
...Petitioner
(By Sri Nagaraj Damodar for
M/s.Rao and Rao Associates, Advs.,)
AND :
1. Munavar Pasha,S/o Ameerjan,
aged about 36 years,
Attender, Govt. Hospital,
Kyalanur, R/o Vokkaleri Village
Kolar Taluk.
2. Basavaraja @ Basava
S/o Gopalagowda,
Aged about 27 years,
R/o Yelavara Village,
Kolar Taluk.
3. Rajesh S/o Hemanthkumar,
Aged about 31 years,
R/o kyalanur Village,
4. Ravi S/o Shivanna,
Aged about 31 years,
R/o Kyalanur Village,
5. E.Subramani, S/o Erappa,
Aged about 31 years,
R/o Kyalanur Village,
6. K.V.Manjunath S/o Venkatappa,
Aged about 41 years,
R/o Kyalanur
Kolar Taluk.
7. The State of Karnataka,
Rep. by Dy. S.P., Kolar Sub-Division,
Kolar.
...Respondents
(By Sri C.V.Nagesh, Sr. Adv., alongwith
Sri Raghavendra K. Adv., for R1 to R6,
Sri P.M.Nawaz, Addl. SPP for R7)
-4-
This Crl.RP is filed u/s 401 Cr.P.C praying to set aside
the order of acquittal dt.28.2.06 in S.C.No.156/2000 on the
file of the II Addl. S.J., Kolar.
The Crl.A and Crl.RP coming on for hearing this day,
the Court delivered the following:
ORAL JUDGMENT : (S.N.SATYANARAYANA J)
The appeal and revision petition are filed challenging the order of acquittal passed in SC.No.156/2000 on the file of II Additional Sessions Judge, Kolar.
2. The facts leading to these two proceedings are as under:
The case of prosecution is that one Manjunath, brother of PW.1-Srinivasa and PW.4-Jayanna was done to death by decapitating his head by accused Nos.1 and 2 at the instance of accused Nos.3 to 6. The prosecution tried to establish that deceased Manjunath and accused Nos.3 to 6 are residents of Kyalanur village of Kolar Taluk and District. It is stated that deceased being member of Congress Party and accused Nos.3 to 6 are said to be members belonging to Janatha Dal party, they are political rivals for long time. It is -5- also stated that rivalry between them started in the Assembly Elections of 1995 where deceased and accused Nos.3 to 6 took different stand and as such, enmity grew between them. It is also its case that accused Nos.3 to 6 were involved in doing financial business and as well as gambling which was opposed by deceased. As such, motive established by the prosecution is that political rivalry and as well as difference between deceased and accused Nos.3 to 6 regarding business conducted by accused Nos.3 to 6. It is also its case that accused Nos.3 to 6 having conspired together took the assistance of accused Nos.1 and 2 to commit the crime of murdering deceased Manjunath.
3. Admittedly, this is the case of circumstantial evidence. There are no witnesses to the incident of Manjunath being put to death either by accused No.1 or accused No.2. There is also no eyewitness to the conspiracy said to have hatched in committing the aforesaid crime by accused Nos.1 to 6. The chain of events as could be seen from the prosecution theory commences from 6.2.2000. On that day, PW.8-owner of property bearing No.26 of -6- Anthargange village noticed a freshly dug portion of his land with blood mark in and around that place leading to suspicion of some crime having been committed in that place and accordingly, informed the same to the jurisdictional police. Based on such, information PW.10-Ramachandra Reddy, took permission of the Assistant Commissioner who is also Sub-Divisional Magistrate for digging the place of alleged crime and for removal of the body. On such exercise by PW.10, he could recover trunk portion of a body without the head i.e., decapitated body of a male person, age and identity of which could not be noticed. It is also stated that on verification of body, they found a kaki pant and light blue shirt on the exhumed body without collar. There also appears to be a copy of application in the pant pocket, which was on the exhumed body. It is seen that said application was addressed to Kyalanur Panchayath seeking permission for taking electricity connection to property of one Srinivas bin Nagaraj.
-7-
4. With that application, police went to the residence of PW.1-Srinivas, brother of deceased and informed him regarding the finding of trunk portion of a male body without head and also informed about the application found in the pant pocket of said body. On going through the same, PW.1 identified said application as having being written by him and given to his brother, Manjunath for submitting the same to Kyalanur Panchayath for the purpose of securing electricity connection to his residence. It is also stated by prosecution that on enquiry with PW.1 regarding who could be the suspected persons committing the crime, he named accused No.1 could be person having committed said crime. Thereafter, he was taken to the place where the body was exhumed and to that place police had also brought A1- Munavar Pasha and even before they could reach, the Tahsildar was also present in that place. In the presence of all of them, accused No.1 identified the place where the body was buried and he also identified another place which is about 30 metres away from the place where the body was buried and stated that decapitated head of the body was -8- buried in that place. On such information by accused No.1, police dug the said portion and found a decapitated head in that place. After examining the exhumed head portion, PW.1 identified the same with the mark that was seen on the right cheek as that of his brother. With this, the prosecution filed charge sheet against accused Nos.1 to 6 for the alleged offence of committing murder of deceased Manjunath with accused Nos.1 and 2 as perpetuators of crime and accused Nos.3 to 6 as abettors. It is also the case of prosecution that in the process of investigation they recovered chopper and spade at the instance of A1. Accordingly, mahazar was drawn for recovery of blood stained pant and shirt, which was found on the exhumed boy vide Ex.P8 with witnesses PWs.13, 16, 17 and 18 and PWs.16, 17 and 27 as witnesses to Ex.P7 the mahazar was also drawn for seizure of blood stained chopper and spade. So far as recovery of head is concerned, another mahazar was drawn in Ex.P28 with PWs.16, 17 and 27, who were the Panch witnesses for the recovery of blood stained chopper and spade. The prosecution in support of its case in all examined 35 -9- witnesses as PWs.1 to 35. PW.1 is the brother of deceased. PW.2, Ramesh who is cousin of deceased Manjunath is examined as the person who has lost seen him in Kyalanur bus stand on 30.1.2000 while the said Ramesh was travelling from Kolar to Kyalanur. PW.3 is also another witness said to be travelling in the same bus, which deceased Manjunath tried to board and at that time, he was taken away by accused No.1-Munavar Pasha. So far as PW.4 is concerned, she is the younger sister of deceased who identified the cloths worn by deceased and other material objects belonging to deceased Manjunath, which were at MOs.2 to 8. The other witnesses are regarding the conspiracy, motive and other alleged acts of the recovery of torso, head and other material objects, which were produced in the prosecution.
5. In short, in this case the prosecution case revolves around the theory of motive, conspiracy and last seen. The theory of last seen of deceased being last seen with accused No.1 as stated by PWs.2 and 3 and also on the basis of
- 10 -
recovery of head, recovery of blood stained clothes of deceased vide Mos.4 and 5, recovery of chopper and spade vide MOs.16 and 12 at the instance of accused No.1, the conduct of parties, identity of exhumed head and body by PW.1 based on the alleged identification mark on the right cheek found thereon and the application written by PW.1 addressed to the Kyalanur Panchayath for getting electricity connection to his house which was found in the pant pocket of exhumed body respectively and extra judicial confession of PW.13.
6. It is seen that the theory of prosecution has not withstood the test of cross-examination. Inasmuch as evidence of PW.1 to the incident regarding motive that deceased and accused belonged to different political parties and as such, there was rivalry between them is not properly demonstrated either through the evidence of PW.1 or other witnesses as could be seen from the material on record. At this stage, it cannot be believed that mere political rivalry could be a cause for the extreme step of trying to commit
- 11 -
murder. The motive being totally unsupported of any evidence cannot be believed conveniently as it is given and also be used for falsely implicating the accused in a case. Therefore, prosecution, failed to establish beyond all reasonable doubt the motive attributable to accused No.1 to 6 for committing murder of deceased Manjunath.
7. Now coming to conspiracy the evidence available on record regarding conspiracy is the evidence of PWs.5, 6 and
18. According to them, conspiracy is said to have hatched between accused Nos.3 to 6 in an open space i.e., in a school ground of Kayalanur village and also in the room of accused No.1. Though said theory is set up by prosecution, they have failed to establish the same through PWs.5, 6 and 18, in that, PWs.5 and 6 have turned hostile and they have not supported the theory of conspiracy. Even assuming that some credence could be given to the theory set up by prosecution regarding conspiracy, the very fact that admission of the accused Nos.3 to 6 openly expressing such opinion in a school ground in the presence of several others,
- 12 -
it cannot be taken as conspiracy, because the element of secrecy not being there. Admittedly, the accused is said to have stated that they intend to put an end to deceased Manjunath. Such statement cannot be considered as conspiracy. Even otherwise, PWs.5, 6 and 18 having turned hostile and retraced their statement in cross-examination, rightly much credence has not been given by the court below to their evidence.
8. Now coming to recovery of head is concerned, there is doubt regarding the date when the recovery took place. As could be seen from the evidence of PW.1 in one place it is stated by him on 6th he was given to understand recovery of headless body of his brother Manjunath in the open filed of PW.10. It is also his case that said body could be identified by him as that of his brother through copy of application, which was found in the pant of exhumed body. It is also stated by him thereafter that on the next day he went to police station on 7.2.2000 along with several other witnesses and there he was taken to the place of crime and at that place the accused No.1 was also present and as well as
- 13 -
family members of P'W.1 and in their presence accused No.1 pointed out the place where the body was buried and thereafter he also showed the place where the head was buried. It is stated that till such time the headless body was not removed and simultaneously both were removed. If this theory is accepted then recovery of headless body by the prosecution on 6th evening and also recovery of the pant and shirt which was put on the exhumed body and the same being shown to PW.1 at his house, cannot be believed. Further it cannot be believed that the very same PW.1 in the same breath says that as on 7.2.2000 when he went to the place of crime the body of deceased Manjunath was not removed earlier to that and it was removed at the same time. Of-course there appears to be some confusion regarding the recording of evidence. But nevertheless the evidence of PW.1 and also that of Dr. Murthy-PW.26 and Tahsildar-PW10, does not support this theory. Inasmuch as, evidence of PW.10 is incomplete, as examination-in-chief itself is not complete and thereafter, he is not submitted for cross- examination to substantiate the recovery of body on 6th and
- 14 -
head on 8th. In any event, there is total confusion regarding recovery of head and body whether it took place on 6th and 8th as stated by prosecution or it is on 6th and 7th as stated by PW.1 in his evidence or 6th or 7th as PW.1 says in another place in his evidence. So far as panch witnesses for recovery of body and as well as head, which is at Ex.P28 and P6, they turned hostile and nothing worthwhile is elicited by the prosecution. So far as extra judicial confession on which the prosecution is trying to make out their case, the person who has given such statement has also turned hostile and has not withstood the test of cross-examination.
9. In that view of matter on reappreciation of entire evidence with reference to the finding of court below it is seen that finding given by court below in accepting that prosecution has miserably failed to establish the involvement of accused Nos.1 to 6 in committing the murder of deceased Manjunath appears to be well reasoned. This Court on reappreciation of material on record find that there is no manifest error either in analysing the evidence or the
- 15 -
material on record to point a finger towards any of accused Nos.1 to 6 in their involvement with the aforesaid crime.
10. In that view of matter, this Court find there is no justifiable reason to interfere with the impugned judgment of court below in disturbing its finding in recording acquittal of accused Nos.1 to 6 of the offence alleged against them. Accordingly, the appeal filed by prosecution and revision petition filed by complainant-PW.1 do not survive for consideration and they are dismissed.
Sd/-
JUDGE Sd/-
JUDGE nd/-